Looking at Cyberlaw

Date: January 26, 2004
Source: TechTV


... the reason why America is at the core of it is this is one of the most important industries in America, and they have the most amount of power and they are exercising it as strongly as they can. If I had to say this is why you should be focused on a lot about American law, [it's] because this is having the most significant impact in setting the agenda for the world, in particular in the context of intellectual property rights. If America is convincing the world that this is just the truth we are talking and you should just follow the truth, understanding how to take that apart is not just important... for Americans, but especially for people around the world. What struck me as depressing is how quickly and willingly other countries have been to follow the American lead about the vision of control that is being imposed on the Internet. India is a perfect example of that which has a tradition of intellectual property rights that could be a nice balance to the American tradition. Europe, too, in the copyright context [could] do something more interesting [than] what [it] turned out they did. They did do something interesting in the context of patents when they resisted for a bit the software patents in the name of a different tradition, so it would be great if there were greater diversity out there and obviously the terms have been served in a very American way.

TechTV: What do you think about the fact that we are losing privacy?

Nesson: My personal response is I'm devastated. I'm really scared to see how fast the privacy that I have grown up with is evaporating, and I think the challenge is to articulate the arguments for privacy in powerful enough ways so they can actually be put into some meaningful forms of protection. I'm pessimistic frankly. I feel the powers that we are up against, the combined forces of market on one hand and government forces on the other, are hugely effective, and on the other hand the forces of individual folk who feel this impending swamping of their individuality in the outflow in the information about them is not easily organized and not easily articulated.

TechTV: Is that part of the reason you teach? Is that part of the reason you participate in these [conferences]?

Nesson: My interest in the Internet goes back to the initial perception that one of the most fundamental boundaries in this environment is between open and closed, between that which is public and that which is propriety domain. And I have been just enormously impressed by just the enormous growth of the propriety domain. It has just fueled this huge immense development, and I have been equally impressed by the lack of development of the public domain... the whole .edu domain for example seems to me to be still awaiting a period of growth. I have never understood why educational institutions subject themselves to the status of being customers for propriety software for example when they would be capable of developing their own. As the Internet unfolds, the narrative story of the competition between the forces of openness and the forces of closure continues to be to me the central theme, and at the moment I would say forces of closure, 10, and forces of openness, one.

TechTV: When it comes to compelling state interests in protecting children and protecting copyrights, do you think the courts' approach to protecting both interests have been appropriate?

Lessig: No, I don't think the courts' approach has been appropriate. I think the first point is if you wanted to be consistent you should say we could go quickly in both cases or slowly in both cases, but it is perverse that you would go slow protecting children and quickly in the context of protecting Hollywood. That would be backward. It is that the forces on the propriety side are actually succeeding much more in connecting with a very deep and many ways good American attitude about the value of something which most people think of as property. So, that connects with these very strong forces of propriety control to push courts and legislatures to support this quickly, believing if they don't it is the end of all things great and American. And I think the challenge for lawyers first and social critics second is to get people to think much more openly about this thing that we call intellectual property and understand how its strong protection can actually reduce the creative opportunities that it was intended to produce. We should go very slowly and just see how it develops. And if there is a need for more protection, step in then, but if anything I think five years from now, or 10 years from now, people will recognize that we have too much protection and not too little protection, and that is a product of just not applying the lesson I thought we'd learned about going slowly in the context of reacting to this change of the Internet.

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